*1 PEAK DEVELOPMENT, LLP, Respondent,
Plaintiff and
JEREMY JUNTUNEN,
Appellant.
Defendant
No. 04-088.
April 27,
Submitted on Briefs
2004.
Decided March
2005.
MT
For Bostock, Kalispell. & Berg, McEvoy of Court. Opinion delivered the the
JUSTICE RICE (Juntunen) the entered appeals from order Jeremy Juntunen ¶1 Court, County, denying his Flathead District the Eleventh Judicial against of him and entry default motion damages. affirm. $64,121.85 in ordering pay him to as follows: appeal the issue on We restate aside the motion to set denial of Juntunen’s Did the of discretion? an abuse judgment constitute default BACKGROUND PROCEDURAL AND FACTUAL (Peak) filed a civil suit Development, LLP Peak July On alleging that District Court Juntunen in the Eleventh Judicial $64,121.85 in for claiming damages a lease and agreement breached lease. unpaid utility rent and associated with the bills 22,2003, July personally copy served with a On Juntunen and Juntunen of the Bear complaint. the summons is the owner Naked Kalispell, The summons Paving Company Montana. advised answer, your appear that “in case of failure to or Juntunen by default, against you, will be taken for the relief demanded in However, twenty days after Complaint” service of the summons. by summons, Juntunen did not file an answer as directed attorney filed for praecipe Peak’s which clerk of the court August entered on September began company paving parking Quatman Quatman. & Working
lot for the law firm of at the law office that he brought Juntunen’s mind had been served with Quatman and complaint, requested attorney summons he John (Quatman) 16,2003. Quatman to inquire September into the matter on did and discovered the August. had been entered in and, apprised situation, He then on October However, filed a motion set aside default. on September already Peak had filed a motion for default *3 further, 2003, September 24, on the District Court had conducted a on hearing Peak’s motion and entered judgment against a default responded Juntunen. Peak to Juntunen’s motion to set aside default 10, 2003, on arguing October was motion not well taken already Quatman the court judgment. because had entered a default filed, 17, 2003, then on seeking October a motion 60(b)(1) judgment pursuant (6), default to Rule and M.R.Civ.P. Quatman argued in his brief that at the time had supporting Peak served the complaint, summons and Juntunen’s hectic business failing schedule contributed to in to file his inadvertence an answer. affidavit, in though argued Included not to the District motion, Court in the was this statement:
During this of time I period my separated same wife and arrested I fight was for a had with her father. The District Court not rule did on the motion to set aside the judgment sixty days, it by operation therefore was denied 60(c), to pursuant Rule appeals M.R.Civ.P. Juntunen therefrom. OF
STANDARD REVIEW In are reviewing judgment, guided by a default we 412 merits; case decided on its
principle every litigated should be (1993), Marriage are judgments by Whiting default not favored. re of 186, 343, a 180, 259 854 347. an is from appeal Mont. P.2d When of of a to a default our standard denial motion set aside only slight is that abuse of discretion need be shown review 359, 364, 688 warrant Lords v. Newman reversal. 290, seeking party judgment P.2d 293. The to set aside a default has Winckler, 116, 10, Marriage of In re 2000 MT proof. burden ¶ of 10, 229, 428, 299 2 ¶ Mont. P.3d ¶
DISCUSSION entry Did of Juntunen’s motion to set aside the the denial judgment default constitute an abuse of discretion? judgment his argues 10 Juntunen that motion set aside default ¶ because, first, good granted been motion satisfied the should have M.R.Civ.P., and, 55(c), secondly, Rule satisfied cause criterion under 60(b)(1), Rule the more standard under stringent Further, Juntunen contends that facts establish M.R.Civ.P. justify setting aside the default extraordinary circumstances which 60(b)(6), pursuant to Rule M.R.Civ.P. Inc., v. 2004 MT Recently, Jaycie, in Essex Ins. Co. be respective we clarified the standards tó Mont. P.3d entry a default or a applied determining whether set aside the Essex, setting judgment. 12. We held that when the issue is default ¶ 55(c), M.R.Civ.P., entry apply under Rule we will aside default Essex, v. (referencing Cribb Matlock the Cribb standard. 10¶ Communications, 27, 30, 768 Inc. [to set showing good cause aside
noting that “to evaluate (1) willful, default,] consider: whether the Court should (2) be if the default should prejudiced would be plaintiff whether the (3) aside, has a meritorious presented and whether the defendant set claim”). However, setting is the when the issue plaintiffs defense to 60(b)(1), under Rule entry of a default aside of an M.R.Civ.P., conjunction with an we or either alone Essex, (referencing Blume the Blume standard. apply will 786). Metro. Ins. Co. Life *4 defaulting party by a criteria must be satisfied clarified that the judgment are as follows: to set aside a default (2) (1) diligence; defaulting proceeded with party (3) excusable; defaulting party party’s neglect was defaulting (4) if claim; to the has a meritorious defense stand, defaulting party injuriously. affect the permitted to will Essex, pending, parties decided this case was and the Essex was while Nonetheless, briefing. for their holding
did not have the benefit of our parties arguments both have offered in accordance with the Blume therefore, and, setting standard for aside a default have Essex, provided analysis, consistent with for our appropriate consideration. argues that his failure to file an answer to Peak’s
complaint disregard judicial process, was not an intentional for the but time, a consequence during noting of his schedule this that he had too plate. explains much on his He that the summer months are the make- it or company, requiring break-it season for his him to work in excess week, per of 100 hours asphalt plants only operate because batch when that, temperature is warm. He also offers during period time, he separate determined to from his wife was arrested for an altercation with his father-in-law. that, We first note in his motion and brief filed in the District
Court, Juntunen did argue separation not that his marital and arrest ability answer, affected his to although file an his filed in affidavit support of his motion mentioning included a sentence these matters. Even Juntunen’s affidavit specifically did not state the dates of his separation domestic and arrest so that those events could be correlated 20-day to the period within which Juntunen was to answer complaint. such, As we conclude that carry Juntunen did not burden of demonstrating that these ability factors interfered with his to answer the complaint. concerns, Turning to Juntunen’s business this Court has
consistently held that a defendant’s “failure to appear due to forgetfulness other, press and the important more business is not sufficient neglect.” establish excusable Apiaries, Foster Inc. v. 156, 161, 630 1213, 1216 Hubbard Apiaries, Inc. (no neglect corporate president excusable where a indicated he did not know required what further action was to make an appearance); see 74, 75-76, also Morris v. Frank Trans. Co. 601 P.2d (business 698, 698-99 up owner who “had been ill and had left it other people run his business and to take care of the lawsuit” did not neglect); Dudley establish excusable v. Stiles (no 342-43 where a defendant’s mind”). personal problems thought “drove all of lesser matters from his We cannot conclude from our cases that the mere press *5 414 neglect busy work season constitutes excusable
busy schedule or 60(b)(1), under Rule necessary judgment to overturn a default M.R.Civ.P., fail to and the Blume standard. Such a conclusion would recognize significance judgment the of the and undermine Thus, having failed the determined that Juntunen respect for courts. unnecessary is establishing neglect, it to meet his burden excusable remaining the criteria under determine whether Juntunen satisfied the Blume standard. 60(b)(6), argument We turn to Juntunen’s under Rule now extraordinary
M.R.Civ.P., demonstrated that that he has judgment. aside the default We have circumstances existed set 60(b)(6), Rule M.R.Civ.P.: clarified when relief is available under [Rjelief M.R.Civ.P., 60(b)(6), for situations is under Rule available the of the than those in first five subsections other enumerated 60(b)(6) the movant demonstrates each applies rule. Rule when 1) including extraordinary circumstances following elements: 2) by attorney; misconduct the movant gross neglect or actual period; time judgment reasonable acted 3) v. [Referencing Karlen Evans movant was blameless. 190, 232, 181, 238.] 915 P.2d 276 Mont. 434, Southworth, 244, 14, 14, 10 MT Mont. P.3d v. 301 ¶ ¶ Bahm circumstances 99, established that 14. Had ¶ neglect, excusable surrounding failure to answer had constituted M.R.CÍV.P., 60(b)(1), Rule eligible have for relief under he would been Further, 60(b)(6), neglect or actual gross M.R.Civ.P. not Rule here, attorney required issues as by are not misconduct 60(b)(6), Thus, inapplicable. is provision that under Rule M.R.Civ.P. of the District Court. judgment We affirm the GRAY, and LEAPHART CHIEF JUSTICES NELSON JUSTICE concur.
JUSTICE COTTER dissents. I dissent. is abuse of discretion recognizes only slight that The Court for the Blume 8. It then cites standard warrant reversal. ¶ needed to to set aside a party seeking that a proposition this, I With excusable. neglect that his must demonstrate that Juntunen However, goes on to conclude the Court then agree. neglect. establishing excusable submit meet his burden failed that we should respect, in this might differ that reasonable minds allowing the merits. by a trial on such doubts therefore resolve & Co. Community Gas Oil Co. States Rubber United 36, 39, determining in 359 P.2d we said to set neglect whether aside a test to determine whether given is reasons are is excusable “whether the for the such concerning differ might reasonable minds in their conclusions neglect. If should the doubt be resolved favor of a trial M.R.Civ.P., 60(b), case it Although predates on the merits.” Rule has cited favorably inception been since rules in cases the propriety of a default has under been See, Transport (1988), e.g., Myers consideration. v.All West v. Scott Griffin 1337, 1338. seem to our have abandoned this test in *6 however, believe, I recent cases. that test should be applied cases, close as doubts in favor trial on is resolving the merits wholly cases-i.e., consistent with our such standard review in only slight abuse of discretion need be to warrant shown reversal. Here, I would conclude the confluence of a hectic seasonal schedule, business separation, fight marital and ensuing arrest are sufficient to raise in reasonable minds a difference of opinion over whether failure respond to a such summons under circumstances neglect. constitutes I would therefore engage presumption that such cases close should be resolved with a trial on merits. dissent from our refusal to do so.